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FOIL Appeal Determination for 07-43-4A (Sandhya Gupta)

December 14, 2007

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 • FAX: (518) 402-9037
Website: http://www.dec.ny.gov/


December 14, 2007

Ms. Sandhya Gupta
Arnold & Porter LLP
399 Park Avenue
New York, NY 10022-4690

Re: Freedom of Information Law Appeal No. 07-43-4A
Freedom of Information Law Request No. 07-280

Dear Ms. Gupta:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL," codified at §§ 84-90 of the Public Officers Law ["POL"]) from the denial of access to certain records that were withheld by the Department of Environmental Conservation ("Department"). These records, which were referenced in your FOIL appeal dated November 20, 2007, pertain to a consent order that was entered into between the Department and the Water Commissioners of the Town of Waterford ("Waterford Consent Order").

In accordance with the Department's FOIL appeal procedures, the Office of Hearings and Mediation Services requested copies of the records that were withheld from disclosure. On this appeal, we have conducted a de novo review of the records withheld. In addition, in your appeal, you inquired about the absence of various records from what was provided, including "engineering reports submitted pursuant to the Waterford Consent Order." Pursuant to your inquiry, I requested Department staff in both Region 5 and Central Office to re-review their files to identify any records that may have been missed in the earlier review. Three additional records were identified, two of which are being released and transmitted under cover of this letter. The two records being released for which, as we discussed, the photocopying costs are being waived in this instance, include:

- Engineering Report dated May, 2005, revised May, 2006, by Delaware Engineering, P.C.; and
- Letter dated May 19, 2006 from Ed M. Hernandez, P.E., to Robert Streeter, P.E. under cover of which the Engineering Report was transmitted.

Department staff have advised that they have no additional reports submitted pursuant to the Waterford Consent Order and no other records that are subject to your FOIL request.

With respect to the records that were withheld, you requested that a privilege log be provided. Please be advised that no requirement exists under FOIL that requires preparation of any list or index identifying the record or records withheld (see Advisory Opinions AO-12924 [August 30, 2001] and AO-11591 [July 27, 1999], New York State Department of State, Committee on Open Government). However, because there was some indication at the initial stages of your FOIL request that a list or index would be provided, I am exercising my discretion and am providing a list of the records that were withheld. In the following chart, I have listed those records with the following information: date of the record, type of record, recipient(s) of records, and our determination of the applicable FOIL exemption(s):

Date Type of Record Preparer of Record Applicable Foil Exemption
February 1, 2007 Internal Memorandum
(1 page)
Department staff (recipients: Department attorneys) POL § 87(2)(a) (attorney-client communication), POL § 87(2)(g)
February 1, 2007 with attachment dated January 30, 2007 Internal E-mail (with internal attachment) (2 pages total) Department staff POL § 87(2)(g)
April 2006 Internal Note
(1 page)
Department staff POL § 87(2)(g)
Undated Draft Consent Order (7 pages) Department attorney POL § 87(2)(a) (attorney work product);
POL § 87(2)(g)
September 15, 2004 Internal Case Report Materials (11 pages) Department staff (recipients include Department attorney) POL § 87(2)(a) (attorney-client communication); POL § 87(2)(g)
September 9, 2007 Internal E-mail Chain (4 e-mails) (2 pages) Department staff and Department attorney either preparer or recipient of e-mails POL 87(2)(a)(attorney client communication) (attorney work product); POL 87(2)(g)
July 7, 2004 Internal Memorandum(1 page) Department staff (Department attorney one of recipients) POL § 87(2)(a) (attorney-client communication); POL § 87(2)(g)
July 18, 20072 Letter (1 page) Department attorney POL § 87(2)(a);
POL § 87(2)(e)(i)

With respect to the FOIL exemptions applicable to these records, POL § 87(2)(g), as you note, exempts from disclosure inter-agency or intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits. Intra-agency materials that consist of opinions and recommendations of agency staff are exempted from FOIL "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers (citation omitted)" (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [1985]; see also New York Times Co. v. City of New York Fire Department, 4 NY3d 477, 488 [2005]). My review of the records in question indicate that these represent deliberative material for which the exemption would apply.

POL § 87(2)(a) provides an exception for records that are "specifically exempted from disclosure by state or federal statute." In the FOIL appeal before me, a number of the above-referenced records were either prepared by or for Department attorneys with respect to issues concerning the Waterford Consent Order. Accordingly, those records are encompassed by the attorney-client privilege (see CPLR 4503[a]) and/or constitute attorney work product (see CPLR 3101[c]). Statements made during the course of enforcement negotiations would also fall within this exemption (see CPLR 4547).

With respect to POL § 87(2)(e)(i), an exemption from FOIL is provided for records that are compiled for law enforcement purposes and which if disclosed would interfere with law enforcement investigations or judicial proceedings. Records relating to agency enforcement activity, such as consent order negotiations and implementation of such orders, are subject to this exception (see Pride International Realty, LLC v. Daniels, 4 Misc3d 1005[A][NY Co Sup Ct 2004]).

This letter is the final determination of the Department of Environmental Conservation. You have the right to seek review of this determination pursuant to Article 78 of the Civil Law Practice and Rules and POL § 89(4)(b). In any further contract with this office, please refer to FOIL Appeal No. 07-43-4A.



Louis A. Alexander
Assistant Commissioner


cc: Robert Freeman, Executive Director,
Committee on Open Government
Ruth L. Earl, Records Access Coordinator

1 As noted, on appeal, a de novo review is conducted which review includes a re-evaluation of the applicable exemptions.
2 This record was identified by Department staff as subject to your FOIL request subsequent to the filing of the FOIL appeal.

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